EEOC Updates Guidance on COVID-19 Issues in the Workplace

On May 28, 2021 the U.S. Equal Employment Opportunity Commission (“EEOC”) posted updated and expanded technical assistance related to the COVID-19 pandemic, addressing questions arising under the federal equal employment opportunity (EEO) laws. The technical assistance answers COVID-19 questions only from the perspective of the EEO laws. Other federal, state, and local laws come into play regarding the COVID-19 pandemic for employers and employees.

The key updates to the technical assistance are summarized below:

● Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, as long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations. Other laws, not in EEOC’s jurisdiction, may place additional restrictions on employers.
● Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community, such as a pharmacy, personal health care provider, or public clinic. If employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential pursuant to the ADA.
● Employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not coercive.
● Employers may provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination.

The update with the full details are located at www.eeoc.gov/newsroom/eeoc-issues-updated-covid-19-technical-assistance
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fraXtion Human Resources Team Key Considerations for Q2

As we roll into Q2 the fraXtion HR Team highlights the following information based on experience and trends in the Human Resources and employment law areas.  This is specific to small and midsized businesses.

1. EEOC EEO-1 Update

On March 29, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced that April 26, 2021 will be the opening date for the collection of 2019 and 2020 EEO-1 component 1 data.

The EEO-1 component 1 data requires the filing of workforce information from employers (non-federal contractors) with 100 or more employees.  The EEOC will begin to formally notify EEO-1 filers via email beginning on March 29, 2021.  Employers will have until July 19, 2021 to submit two years of EEO-1 data.

2. CDC Advice on Workplace Vaccination Programs

On March 25, 2021, the Centers for Disease Control and Prevention (“CDC”) updated the workplace vaccination programs information.  This information includes valuable considerations for: employee vaccination options, building confidence with your employees and employer best practices.

3. OSHA Programs for COVID-19 related issues

On March 12, 2021, the Occupational Safety and Health Administration (“OSHA”) launched a program for high-risk workers to coronavirus.

The program also focuses on employers that retaliate against workers with safety concerns.

Contact mike.womack@fraxtionsmb.com for a free consultation or get an affordable monthly subscription at www.fraxtionsmb.com to navigate this program.

HR considerations 2021.

Top HR Considerations for 2021

1. U.S. Department of Labor Issues Final Rule Clarifying Independent Contractor Status.

On January 6, 2021, the U.S. Department of Labor issued its final rule clarifying independent contractor verses employee status. The new rule reaffirms the “economic reality” test and identifies two core factors that are most relevant including: (i) nature and degree of control over the work, and (ii) the worker’s opportunity for profit or loss based on the work. Three additional factors were also identified as additional guideposts including: (i) the amount of skill required for the work, (ii) the degree of permanence of the working relationship, and (iii) whether the work is part of an integrated unit of production.  

The rule will become final on March 8, 2021. If you have independent contractors in your workforce now is a good time to reassess and confirm that they are properly classified.  Click here for additional information.

The Department of Labor’s recent rule clarifying the independent contractor status has been put on hold by the Biden administration.  We will continue to monitor this issue for updates.

2. Mandatory Employee COVID-19 Vaccinations?

Last month, the U.S Equal Employment Opportunity Commission issued guidance generally allowing employers to require employee to get a COVID-19 vaccination. The updated information from the EEOC is “guidance” only and employers considering making a vaccination mandatory should get counseling before implementing a blanket requirement. Based on recent national surveys, a majority of employers will “encourage”, but not “require” employees to be vaccinated.       

HR considerations 2021.

3. Employee Performance Evaluations and Pay Increases.

How do you effectively evaluate performance in a year disrupted by the pandemic? How do you properly compensate employees on goals and objectives that may not have been met due to the pandemic? Employers should take a fair and objective approach to balance evaluations and pay increases in the context of the disruption that we continue to navigate.  Here is some good labor market and economic data from the U.S. Bureau of Labor Statistics.  

4. EEOC Schedules 2021 Openings of EEO Data Collections.

On January 12, 2021, the U.S. Equal Employment Opportunity Commission announced the schedules of the 2021 openings of EEO data collections after the delay due to the COVID-19 public health emergency. For private sector employers with more than 100 employees the data for 2019 and 2020 will be due in April 2021. See the attached link for additional information.

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